Gully v. Sowell

ON SUGGESTION OF ERROR. It was the main contention, and the only contention to which argument was directed, by appellant in the original consideration of this case, "that the sheriff and tax collector was not protected by his depositing in the county depository, but that a special depository must be selected for the funds of the sheriff and tax collector under chapter 215, Laws 1932." We so understood the argument of appellant, and the able and discriminating attorney for appellee so understood it, the opening statement of his brief in response to the brief of appellant being as follows: "The only proposition raised by appellant upon which he asks this court to reverse the decision of the chancellor, is that the board of supervisors did not after the passage of chapter 215, Laws 1932, designate specifically, by an order spread on its minutes, a depository for the tax collector's account."

In our written opinion ruling adversely to the stated contention of appellant, and holding that chapter 215, Laws 1932, had no application so far as concerned the point relied upon by appellant, the opinion inadvertently carried language which would apparently commit us to the proposition that the chapter had no application in any respect or in any other feature so far as concerns a county where there was a regular county depository. But such a construction of the statute as that last mentioned would not be correct, for section 3, in particular of chapter 215, Laws 1932, applies to counties having a regular county depository, as well as to counties selecting an emergency depository under that chapter.

Certainly it would not be, and was not, the purpose of the Legislature to place the tax collectors in those counties having a regular county depository, selected in the ordinary manner upon bids, at any disadvantage as compared with tax collectors in counties wherein a tax collector's emergency depository was selected under the chapter mentioned. And this is made fairly clear by said section 3, which reads as follows:

"That upon the selection of any county depository, either upon bids therefor or by designation of the board of supervisors or the state superintendent of banks and such designated bank becoming qualified as required by law, the tax collector of such county or counties shall deposit all funds collected therein and thereafter make a transfer to the several accounts and funds as now required by law of him in making his settlements; and, upon so depositing such funds when collected, the tax collector shall thereupon be relieved and discharged from further liability therefor excepting for such amounts as the tax collector may withdraw or cause to be withdrawn from his account or accounts and to which he is not legally entitled."

Thus it is to be observed that by express language that section is made to include counties where the depository has been selected upon bids therefor, and that, of course, means the regular or ordinary county depository, and the language is further that "the tax collector of such county . . . shall deposit all funds collected therein and thereafter make a transfer to the several accounts and funds as now required by law of him in making his settlements." The record before us shows that the regular county depository here had furnished security in an amount sufficient to cover the sheriff and tax collector's deposits as well as the funds already distributed, but we intimate nothing in that matter as to whether the sheriff and tax collector is under any duty to see to it that said security is sufficient.

There are many accounts or funds to which the taxes collected in the county, by the tax collector thereof, are to be distributed. In some of the larger counties there are more than one hundred of such different accounts or funds. It would be a physical impossibility, with a clerical force of reasonable size, during the months of the heavier collection of taxes, for the tax collector and the county auditor to figure out the distribution at the end of each day for the collections made that day, and hence the reasonable provision that the tax collector shall make his deposits "and thereafter make transfer to the several accounts and funds."

The sheriff and tax collector is required by the absolute mandate of the statute to deposit in the county depository all public funds collected by him. He is given no option, no means to take care of himself other than that so furnished. The result is that it is lawful for the tax collector to make his daily deposits of his tax collections in the county depository to his credit as sheriff and tax collector; and if thereafter, on or before the dates fixed by law to make his settlements, he transfer the said collections to the several funds and accounts, duly observing the several requirements of the law in performing that duty, he and his bondsmen are protected as to the deposits thus made, and in respect to which the due date for distribution and settlement has not arrived, as is the case here. The facts supported by the testimony when viewed in the light of the decree of the chancellor show that the sheriff and tax collector in this case made his settlements and distributions at the time and substantially in the manner prescribed by law, and he is therefore not liable for the funds deposited in the regular county depository, but not transferred or distributed, there having been no default on his part in that regard.

Suggestion of error overruled.